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OPINION | EDITORIAL: Opinion makers

A concurrence for the books November 28, 2020 at 11:42 a.m.

It's a pleasure to read good writing. A reader doesn't get that enough when it comes to court proceedings. Lawyers write to be legal, not necessarily to be understood. But it is hard not to just cut and paste the concurring opinion by Justice Neil Gorsuch issued Thanksgiving morning, and call it a guest column in this space. The man would have made a good editorial writer.

The matter before the court this time was a case in New York state, or a couple of cases, dealing with covid-19, state restrictions, and houses of worship. The press, and more especially the cable news networks, have presented the 5-4 ruling in favor of the religious organizations as the first real sign that the conservatives have taken over the United States Supreme Court. Everything is a horse race with them. But to read Mr. Justice Gorsuch's opinion is to understand that the courts can't always avoid decisions, as much as this one likes to.

The governor of New York, Andrew Cuomo, had placed restrictions in

color-coded parts of the state, with limits on who could do what and where. Including limiting houses of worship to 10 people, total, in red zones. No matter how big the church or synagogue, no matter the social distancing in the buildings, no matter other precautions.

The court ruled that the restrictions violated the Free Exercise Clause of the First Amendment, for the restrictions for the houses of worship weren't applied to more secular places.

The press called the concurring opinion by Neil Gorsuch scathing. We'll call it convincing. His first paragraph:

"Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available."

But then it got good:

"New York's Governor has asserted the power to assign different color codes to different parts of the State and govern each by executive decree. In 'red zones,' houses of worship are all but closed--limited to a maximum of 10 people. In the Orthodox Jewish community that limit might operate to exclude all women, considering 10 men are necessary to establish a minyan, or a quorum.

"In 'orange zones,' it's not much different. Churches and synagogues are limited to a maximum of 25 people. These restrictions apply even to the largest cathedrals and synagogues, which ordinarily hold hundreds." And the state never took into account the self-imposed precautions required at those places of worship, even including a lack of singing.

"At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers 'essential.' And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?"

He makes himself clear, Mr. Justice Gorsuch does. Which is not always the case for this court.

The chief justice, John Roberts, wanted to punt. It's his favorite play. Mr. Justice Roberts noted that the governor of New York had revised the restrictions on religious outfits as the case got closer to review by the high court. And the point had become almost moot. Besides, the court could always pick up the matter again in the future, if the governor and these religious organizations came to an impasse again. Neil Gorsuch addresses that weak argument as well:

The chief justice's argument would mean that "[e]ven if the churches and synagogues before us have been subject to unconstitutional restrictions for months, it is no matter because, just the other day, the Governor changed his color code for Brooklyn and Queens where the plaintiffs are located. Now those regions are 'yellow zones' and the challenged restrictions on worship associated with 'orange' and 'red zones' do not apply. So, the reasoning goes, we should send the plaintiffs home with an invitation to return later if need be.

"To my mind, this reply only advances the case for intervention. It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant.

"So if we dismissed this case, nothing would prevent the Governor from re-instating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the 'off' switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty."

So the punt was called off. And the U.S. Supreme Court ran it up the middle for a first down. And protected the First Amendment and religious liberty.

None of this is to downplay the seriousness of the covid-19 crisis, or to undermine government orders in an attempt to protect the public. But how is limiting a large church to 10 people, while allowing many more in a much smaller liquor store, anything except a challenge to common sense?

The court needed to run a play on this matter. Thankfully, finally, gratefully, it did.

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